The Power of the Presidential Pardon

By Ron Fournier

President Obama on Wednesday will pardon a Thanksgiving turkey. Which makes this a good time to ask why a liberal constitutional lawyer who bemoans the bloated prison system and proclaims that "life is all about second chances" is—on the matter of clemency—one of the stingiest presidents in U.S. history?

Put another way: If a turkey deserves a second chance, why not Weldon Angelos?

Angelos was sentenced in 2004 to 55 years' imprisonment for possessing a firearm in connection with selling small amounts of marijuana. He didn't brandish or use a weapon, nor did he hurt or threaten to injure anybody. And yet the father of young children and aspiring music producer was given an effective life sentence because of a draconian mandatory-minimum federal law.

Even the judge on his case, Paul G. Cassell, found the sentence "cruel and irrational." While urging Obama to reduce Angelos' punishment, the Republican-appointed judge wrote, "While I must impose the unjust sentence, our system of separated powers provides a means of redress."

More than almost any president, Obama has failed to exercise that "means of redress" enscribed in the Constitution, the presidential clemency. But that may be changing. The White House is considering a broad range of clemency reforms.

Why Is This an Issue?

According to an analysis of Department of Justice data published by Reason.com, only three presidents made less use of the clemency power than did Obama during their first terms: George Washington, who had little cause to grant clemency in the nation's first days; William Henry Harrison, who died of pneumonia a month after taking office; and James Garfield, who was shot four months into his presidency.

After granting 17 pardons this year, according to the DOJ website, the total for Obama's presidency stands at 39 pardons (which clear people's records, typically after they've completed their sentences) and just one commutation (which shortens a prisoner's sentence).

As you can see from the graphic, Obama still ranks at the bottom historically, and his record extends a trend of presidential intolerance that dates to the tough-on-crime demagoguery of Presidents Reagan or Nixon—both of whom, ironically, were more generous with clemency powers than Obama.

"In Federalist 74, Hamilton made clear why the president had the power to pardon: Mercy, particularly when sentences are too harsh. It's the way of humans, we overreact sometimes," said Mark Osler, a University of St. Thomas (Minnesota) professor and former federal prosecutor in Detroit who wrote Angelos' broadly supported petition. (Disclosure: Osler is a friend of mine.)

The issue is freighted with politics. In 1988, Republicans attacked Democratic presidential nominee Michael Dukakis for a Massachusetts furlough program that allowed convicted murderer Willie Horton to escape and commit more crimes. Two decades later, rivals skewered GOP presidential candidate and former Arkansas Govenor Mike Huckabee for his role in the release of convicted rapist Wayne Dumond, who raped and murdered another woman after leaving prison.

Obama has a particular political problem. In early 2001, Bill Clinton granted a spate of unseemly pardons and commutations in the final days of his presidency. The most controversial act of clemency went to financier Marc Rich on the recommendation of Eric Holder, who is now Obama's attorney general.

Responding to (and stoking) voters' fears, a generation of politicians have engaged in what political columnist Carl M. Cannon called "an orgy of incarceration" that included mandatory minimum sentences for drug crimes. In 1992, Bill Clinton campaigned for president promising to "put more police on the street and more criminals behind bars." Incumbent George H.W. Bush pledged to double spending on federal prison construction.

In 2010, Congress finally addressed the crack-powder cocaine disparity, but the law wasn't made retroactive. "So you've got all these people serving incredibly long sentences that, under the new law, they'd be out of prison by now," Osler said.

That is not the only blunderbuss statute carrying harsh mandatory sentences. Angelos, at age 24 and with no criminal history as an adult, was caught selling $350 worth of marijuana on three occasions while in possession of a firearm. Though it was not used in the crime, the weapon triggered extreme sentencing requirements. Had he been charged in a state court, for example, Angelos would have been paroled years ago, the petition says. His sentence is longer than the punishment imposed on aircraft hijackers, kidnappers, child rapists, and second-degree murderers.

What Should Be Done?

After granting Angelos' petition, Obama should grant clemency to inmates sentenced under the old crack-powder guidelines. He also should eliminate the Department of Justice's sole authority to review clemency petitions and make recommendations to the president. It's an unacceptable conflict of interest to have DOJ prosecutors reviewing the petitions of people jailed by the DOJ.

A smart suggestion from Osler: Follow the example of President Ford, who created an independent panel to review clemency petitions from the Vietnam War. Via the Presidential Clemency Board, President Ford granted 1,731 pardons to civilians (those who evaded the draft) and 11,872 to military personnel (who went AWOL). The board inoculated Ford from political fallout. "No one remembers Ford doing this," Osler said, "and draft evaders weren't exactly popular back then, just like drug sellers aren't now."

Administration sources tell me that such reforms are being considered by the White House, and that Obama is sympathetic to the reformers' pitch. As a state legislator in 2001, he declared, "We can't continue to incarcerate ourselves out of the drug crisis." As a presidential candidate six years later, Obama lamented that "we now have 2 million people who are locked up … by far the largest prison population per capita of any place on earth." According to Jacob Sullum's story for Reason.com, the president also has said he suspects a "racial component" behind drug arrest and conviction rates, adding that disparate penalties are "not black or white issues" but "an American issue" since "our basic precept is equality under the law." In addition to signing the the 2010 crack-powder legislation, Obama has directed Holder to take administrative steps to cut mandatory minimum sentences.

Broader clemency reforms are not imminent. Spokesmen at the White House and Department of Justice refused interviews for this column. Osler has had no response on his petition for Angelos, supported by a group of 145 individuals including former U.S. attorneys general, retired U.S. Circuit Court judges, retired U.S. District Court judges, a former FBI director, former U.S. attorneys, and other former high-ranking DOJ officials.

"One of the things about a clemency petition is that it's a black box," Osler told me. "Once you submit a petition, you don't find anything out. There's no process." And, too often, there's no justice.